Who Owns Wildlife?

Anybody still remember Erroll Flynn busting his way into King John’s castle with a deer across his shoulders knocking armor clad soldiers to the ground with the antlers? There can be many reasons why this act was such a mockery to the King but one aspect often overlooked is that the deer was owned by the King and Robin Hood had the audacity to take the King’s property. Indeed hunting was held for only the upper class and royalty.

Our settlement of this country afforded us many opportunities for change and one of those changes was a system of wildlife management where all citizens could take part; a system where there was no value on wildlife (once taken) and therefore not reserved for those that valued only themselves. With that in mind our new country viewed wildlife as being collectively owned by all its citizens, as opposed to individual property, who could then take part in wildlife related activities including hunting, trapping, fishing without penalty and for a variety of reasons including and primarily survival on the frontier.

Early on there were very few if any game laws and those that were present relied on volunteer compliance. It wasn’t until the Supreme Court, over the next 200 years, started taking a look at a string of cases involving natural resources did the issue of ownership, management responsibility, liability as well as commerce did these early practices start to take shape.

The landmark decision Scott v State of Connecticut in 1984 cemented the status of wildlife from several angles. First, that a free and wild game herd is owned collectively and not by the state or individual persons and is only managed by the State game agency and that individuals and the State could thus not sue each other for damages based on that lack of ownership status. In fact the only time the status of wildlife changes and is reduced from “in the public trust” to personal property is when it is legally harvested by hunting, trapping or fishing – hence a carcass or possession tag in cases like deer, bear and most furbearers.

Wildlife in many states including New York State have a similar basis in that wildlife and all natural resources are kept in “trust’ in accordance with the public trust doctrine to be used by all citizens and managed for the benefit of all citizens by the Department of Environmental Conservation (DEC) a state agency created in 1970 that put to rest any lingering notion that wildlife could be considered individual property although many sportsmen believe and rightly so to a certain extent that wildlife is managed specifically for them and everybody else secondarily – more on that in the next installment.

What about the role of the federal government in wildlife management? Through several of the aforementioned Supreme Court decisions the federal government exercised several clauses of the Constitution including the treaty clause to pass the Migratory Bird Treaty Act and the Endangered Species Act as well as the property clause and the commerce clause and virtually took over the role of wildlife management nationwide and generally can pre-empt any state level wildlife management decisions.

How then can the states manage wildlife then? The federal government recognized that wildlife and other natural resources were better off managed more locally and so by not having any specific policy delegated wildlife management authority to the states through the 10th Amendment of the Constitution i.e. powers not delegated by the United States are reserved to the states respectively.

Most people at one time or another are affected by wildlife whether its raccoons or squirrels in your attic or a skunk under your porch. Whatever the case it’s important to know what you can and can’t do legally and ethically and where/how any restrictions came to be because it can help you solve a wildlife problem legally and safely, direct you to right place for assistance as well as avoid certain organizations i.e. anti-hunting/trapping organizations that know nothing about wildlife. You may be upset about having a woodchuck destroy your garden or the 8 pointer that just totaled your car but your options may be limited because everybody owns wildlife and nobody owns wildlife.